| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 52 |
| Hearing date | 8 Dec 2010 - 28 Jan 2011 (6 days) |
| Determination date | 06 May 2011 |
| Member | R Larmer |
| Representation | A Sharma ; G Barkle |
| Location | Nelson |
| Parties | Burtton v Talley's Group Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Respondent conducted drug search on fishing vessel applicant worked on – Respondent had contractual right to conduct search – Drug dog took particular interest in applicant’s luggage and investigation conducted – Private investigator recommended applicant be suspended – Applicant suspended indefinitely without pay – Personnel Manager (“R”) claimed crew member named those who used drugs – Authority preferred R’s evidence about disclosure – Applicant denied storing other suspended worker Mr Browne’s (“B”) name in telephone as “Karl Crackie” because B used P – Found likely applicant stored B’s name as “Karl Crackie” – Respondent claimed suspended applicant for lying about association with B – Found respondent did not provide applicant with any information before suspension – Found respondent did not consider options other than suspension without pay – Found unpaid suspension procedurally and substantively unjustified – Unjustified disadvantage – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Found respondent failed to provide information so applicant had no opportunity to comment on before dismissal – Found disciplinary allegations so vague basically meaningless – Found respondent failed to conduct full and fair investigation despite considerable resources – Found respondent failed to make proper inquiries into concerns – Found respondent influenced by highly unsubstantiated and highly prejudicial rumours, gossip and unreliable hearsay – Found fair and reasonable employer would have assessed crew members’ credibility before relying on disclosures – Found respondent rejected applicant’s request for drug testing without properly considering proposal and had no good reason for rejection – Found fair and reasonable employer would have ensured accurate record kept of investigation – Found respondent did not approach disciplinary allegations with open mind – Found outcome letter only addressed two of four allegations – Found fair and reasonable employer would have advised employee if had made disciplinary findings – Found reasonable of applicant to assume allegations not addressed in outcome letter had not been established – Found drug dog’s interest in applicant’s luggage did not reasonably support allegation of possession or use of drugs as no drugs found – Found applicant treated differently to other crew members involved – Found no reference made to use of drugs part of allegation so reasonable to assume allegation not established – Found no explanation about dishonesty allegation – Found unfair to summarily dismiss applicant for dishonesty without first identifying what matters applicant dishonest about – Found no follow up questions asked about association with B so respondent unable to make fully informed decision about dishonesty – Found respondent’s belief applicant made threats in call to B unreasonable and not supported by information – Found respondent did not conduct full and fair investigation into dishonesty concerns – Dismissal unjustified – REMEDIES – Contributory conduct 20 percent – Found applicant’s denial that stored B’s name as “Karl Crackie” in phone influenced decision to suspend and dismiss – Found applicant took steps to mitigate loss – $35,697 reimbursement of lost wages appropriate – Found parties to determine whether bonuses included in award – Found insufficient evidence provided for compensation for loss of benefits – Parties to determine if any entitlements due – Found applicant suffered significant hurt, humiliation and distress as result of unjustified suspension and dismissal – $18,400 compensation appropriate – Interest payable – PENALTY – Applicant sought penalty for breaches of good faith obligations – Found breaches not deliberate or sustained – No penalty – Senior Sailor Deckhand |
| Result | Application granted ; Reimbursement of lost wages ($35,967.10)(parties to determine if bonuses to be included in award) ; Interest (8.4%) ; Compensation for loss of benefits (parties to determine quantum if any) ; Compensation for humiliation etc ($23,000 reduced to $18,400) ; Contributory conduct (20%) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(a);ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A;ERA Second Schedule cl11;Judicature (Prescribed Rate of Interest) Order 2008;Judicature Act 1908 s87(3) |
| Cases Cited | Airline Stewards and Hostesses of NZ IUOW v Air New Zealand Limited [2006] ERNZ 415;Browne v Talley's Group Limited [2011] NZERA 51;C v Air New Zealand [2011] NZEMPC 27;George v Auckland Regional Council [2010] ERNZ 350;Honda NZ Ltd v NZ Shipwrights etc Union [1990] 3 NZILR 23;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178;X v ADHB [2007] ERNZ 66 |
| Number of Pages | 37 |
| PDF File Link: | 2011_NZERA_Christchurch_52.pdf [pdf 107 KB] |